FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 04-55838 Plaintiff-Appellant,

D.C. No.

v.  CV-03-06706-CBM

RAYMOND P. NOVAK,

OPINION Defendant-Appellee. 

Appeal from the United States District Court

for the Central District of California

Consuelo B. Marshall, Chief Judge, Presiding

Argued and Submitted

February 16, 2006—Pasadena, California

Filed March 23, 2006

Before: Alfred T. Goodwin, Betty B. Fletcher, and

Consuelo M. Callahan, Circuit Judges.

Opinion by Judge Callahan;

Dissent by Judge B. Fletcher

3173
COUNSEL

Debra Yang, United States Attorney, Leon W. Weidman, and

Brent A. Whittlesey, Assistant United States Attorneys of Los

Angeles, California, for the appellant. 

Martin S. Bakst of Encino, California, for the appellee. 

OPINION

CALLAHAN, Circuit Judge: 

The United States appeals from the district court’s order

quashing its writ of garnishment of Raymond Novak’s benefits under a pension plan subject to the Employment and

Retirement Income Security Act of 1974 (“ERISA”). The disUNITED STATES v. NOVAK 3175
trict court held that such a garnishment was prohibited by

ERISA’s anti-alienation provision, 29 U.S.C. § 1056(d)(1).

We reverse and remand because we determine that the Mandatory Victims Restitution Act of 1996 (“MVRA”), 18 U.S.C.

§ 3663A, in conjunction with 18 U.S.C. § 3613, constitutes a

statutory exception to ERISA’s anti-alienation provision.

I

The criminal information filed against Novak alleged that

between 1995 and 1999 he transported certain valuable telephone boards in interstate commerce knowing that the boards

were stolen. His then-wife was employed by Nestle U.S.A.,

Inc. (“Nestle”). Novak’s wife would order the telephone

boards for Nestle, then steal the boards and deliver them to

Novak, who would sell them. Novak was also charged with

failing to report the income he received from selling the stolen

telephone boards on his 1997 federal income tax returns. 

Novak pleaded guilty to charges of conspiracy to transport

stolen goods in violation of 18 U.S.C. § 371 and filing false

income tax returns in violation of 26 U.S.C. § 7206. The district court sentenced him to 24 months’ imprisonment and

ordered him to pay restitution in the amount of $3,360,051.67.

From February 1990 to March 2000, Novak worked as the

director of telecommunications at Robinsons-May Department Stores (“May Company”). During that time, he earned

pension benefits that were fully vested at the time of his plea.

It appears that under the pension plan, Novak, after reaching

the age of sixty-five, would be entitled to an annual payment

of almost $11,000, or he could immediately withdraw the

entire amount, which had a market value of $142,245.11 as of

September 30, 2003. 

On September 18, 2003, at the government’s request, the

Clerk of the district court issued a post-judgment writ of garnishment to the May Company for amounts owed to Novak.

3176 UNITED STATES v. NOVAK
The writ was issued pursuant to the garnishment provisions of

the Federal Debt Collection Procedures Act (“FDCPA”), 28

U.S.C. § 3205. Novak objected to the garnishment, the government responded, and the district court held a hearing. 

On March 5, 2004, the district court issued an order quashing the writ of garnishment. The government filed a timely

notice of appeal. We have jurisdiction pursuant to 28 U.S.C.

§ 1291. 

II

When it quashed the writ of garnishment, the district court

recognized that a pension fund was the type of property that

may be reached by the United States pursuant to the FDCPA.

The district court, however, relying primarily on the Supreme

Court’s opinion in Guidry v. Sheet Metal Workers Nat’l Pension Fund, 493 U.S. 365, 376 (1990), and our decision in

United States v. Jackson, 229 F.3d 1223 (9th Cir. 2000), held

that garnishment was prohibited by ERISA’s anti-alienation

provision. The district court rejected the government’s argument that the MVRA created an exception to ERISA’s antialienation provision. 

Both the interpretation of ERISA and the applicability of

other statutes to ERISA are questions of law that we review

de novo. Shaver v. Operating Eng’rs Local 428 Pension Trust

Fund, 332 F.3d 1198, 1201 (9th Cir. 2003); Kayes v. Pac.

Lumber Co., 51 F.3d 1449, 1455 (9th Cir. 1995). 

[1] Our evaluation of this case starts with the Supreme

Court’s explanation of ERISA’s anti-alienation provision in

Guidry. There, the Court held that the anti-alienation provision prohibited the imposition of a constructive trust on, or

garnishment of, a pension covered by ERISA “unless some

exception to the general statutory ban is applicable.” Guidry,

493 U.S. at 372. 

UNITED STATES v. NOVAK 3177
In Guidry, the Court was concerned with the remedial provisions of the Labor-Management Reporting and Disclosure

Act of 1959 (“LMRDA”), 29 U.S.C. § 501(a) (1982). This

statute provided, under certain circumstances, for a private

right of action “to recover damages or secure an accounting

or other appropriate relief for the benefit of the labor organization.” Guidry, 493 U.S. at 374. The Court assumed, without

deciding, that the LMRDA’s statutory provision might authorize the imposition of a constructive trust, and stated that the

question presented was “whether that authorization may override ERISA’s prohibition on the alienation of pension benefits.” Id. at 374-75. The Court held that it did not, reasoning

that the LMRDA would not be:

modified, impaired, or superseded by our refusal to

allow ERISA pension plans to be used to effectuate

the remedial goals of the LMRDA. Were we to

accept respondents’ position, ERISA’s antialienation provision would be inapplicable whenever

a judgment creditor relied on the remedial provisions

of a federal statute. 

Id. at 375. 

The Court also declined to find any “generalized equitable

exception” to ERISA’s anti-alienation provision. Id. at 376. It

observed that the anti-alienation provision reflected a “considered congressional policy choice, a decision to safeguard a

stream of income for pensioners (and their dependents, who

may be, and perhaps usually are, blameless), even if that decision prevents others from securing relief for the wrongs done

them.” Id. It stressed that “[i]f exceptions to this policy are to

be made, it is for Congress to undertake that task.” Id. 

[2] The Court further explained that the creation of exceptions was particularly problematic in the context of an anti

garnishment provision because such a provision, by definition, hinders the collection of a lawful debt. Id. Thus, a

3178 UNITED STATES v. NOVAK
restriction on garnishment “can be defended only on the view

that the effectuation of certain broad social policies sometimes takes precedence over the desire to do equity between

particular parties.” Id. (emphasis in original). The Court cautioned that courts “attempting to carve out an exception that

would not swallow the rule would be forced to determine

whether application of the rule in particular circumstances

would be ‘especially’ inequitable.” Id. at 377. For this reason,

the Court concluded that “the identification of any exception

should be left to Congress.” Id. 

We determine that with the passage of the MVRA, Congress did what the Supreme Court in Guidry indicated it could

do: enact a statutory exception to ERISA’s anti-alienation

provision. We find that Congress enacted a statutory exception because (a) the MVRA is a specific collection statute

designed to provide victims with restitution, and (b) Congress

provided for restitution orders to be enforced like tax liens,

which are enforceable against ERISA pension benefits. 

[3] While the purposes behind the remedial provision of the

LMRDA at issue in Guidry were not clear, Congress enacted

the MVRA specifically “to ensure that the loss to crime victims is recognized,” and to establish that in addition to other

penalties authorized by law, “the offender makes restitution to

the victim.” S. REP. NO. 104-179, at 12 (1995), as reprinted

in 1996 U.S.C.C.A.N. 924, 925-27.1 To that end, the MVRA

1Senate Report 104-179 includes the following statements: 

The purpose of H.R. 665 is to improve the administration of justice in Federal criminal cases by requiring Federal criminal

defendants to pay full restitution to the identifiable victims of

their crimes. 

. . . 

The committee amendment is intended first, to require that full

restitution be ordered to the victims of all covered offenses in

which there is an identifiable victim, second, to establish one set

UNITED STATES v. NOVAK 3179
requires district courts to order restitution for victims in cases

involving property loss.2 This is the type of broad social policy determination that the Supreme Court in Guidry noted was

appropriate for Congress, but not the courts. 

[4] The MVRA also provides that restitution orders are to

be enforced by the government using all of the remedies that

are available for the collection of criminal fines. 18 U.S.C.

§ 3664(m)(1)(A)(i); see also United States v. Phillips, 303

F.3d 548, 550-51 (5th Cir. 2002) (holding that the “MVRA

provides the Government authority to enforce victim restitution orders in the same manner that it recovers fines and by

all other available means”). In addition, 18 U.S.C. § 3613,

which is entitled “Civil remedies for satisfaction of an unpaid

fine,” states that “an order of restitution made pursuant to [the

MVRA] is a lien in favor of the United States on all property

and rights to property of the person fined as if the liability of

the person fined were a liability for a tax assessed under the

Internal Revenue Code of 1986.” 18 U.S.C. § 3613(c). Thus,

Congress has made the policy choice to elevate the collection

of criminal restitution orders in the debt-collection food chain

to equal the position enjoyed by the Internal Revenue Service

in the collection of its unpaid tax demands. 

of procedures for the issuance of restitution orders in Federal

criminal cases, and third, to consolidate the procedures for the

collection of unpaid restitution with existing procedures for the

collection of unpaid fines, while at the same time strengthening

these procedures. 

S. REP. NO. 104-179, at 12-14 (1995), as reprinted in 1996 U.S.C.C.A.N.

924, 925-27. 

2

18 U.S.C. § 3663A(a)(1) states: 

Notwithstanding any other provision of law, when sentencing a

defendant convicted of an offense described in subsection (c), the

court shall order, in addition to, or in the case of a misdemeanor,

in addition to or in lieu of, any other penalty authorized by law,

that the defendant make restitution to the victim of the offense or,

if the victim is deceased, to the victim’s estate. 

3180 UNITED STATES v. NOVAK
[5] In § 3613, Congress also defined what limited types of

property are beyond the government’s reach. Subsection (a)

of 18 U.S.C. § 3613 states:

Enforcement. The United States may enforce a judgment imposing a fine in accordance with the practices and procedures for the enforcement of a civil

judgment under Federal law or State law. Notwithstanding any other Federal law (including section

207 of the Social Security Act), a judgment imposing a fine may be enforced against all property or

rights to property of the person fined, except that—

(1) property exempt from levy for taxes

pursuant to section 6334(a)(1), (2), (3), (4),

(5), (6), (7), (8), (10), and (12) of the Internal Revenue Code of 1986 shall be exempt

from enforcement of the judgment under

Federal law; . . . . 

Two features of this statute inform our position that ERISA

pension plans are not exempted. First, the statute specifically

states “[n]otwithstanding any other Federal law[,]” all properties may be reached except those specifically exempted by the

statute. Second, none of the exemptions in 18 U.S.C.

§ 3613(a)(1) apply to ERISA pension plans.3 We further note

that as some of the exemptions are quite detailed and concern

properties similar to ERISA pension plans, we cannot assume

that the exclusion of ERISA pension plans was an oversight.4

3Additional exemptions are set forth in § 3613(a)(2) and (3), but they

have no bearing on this case. 

4For example, 26 U.S.C. § 6334(a)(6) and (7), which exempt certain

annuity and pension payments and workmen’s compensation payments,

respectively state: 

(6) Certain annuity and pension payments. Annuity or pension

payments under the Railroad Retirement Act, benefits under the

Railroad Unemployment Insurance Act, special pension payUNITED STATES v. NOVAK 3181
Indeed, we have already so held, having determined that

the government may levy a tax lien against a delinquent taxpayer’s ERISA protected assets. In re McIntyre, 222 F.3d

655, 660 (9th Cir. 2000). In McIntyre we reversed the lower

court’s determination that ERISA’s anti-alienation provision

prevented the IRS from levying on the benefits from any

ERISA-governed pension plan. We explained:

the Internal Revenue Code expressly indicates that

no other federal law shall exempt property from the

IRS’s authority to levy a delinquent taxpayer’s property under § 6331. See 26 U.S.C. § 6334(c). Moreover, ERISA’s anti-alienation clause cannot prevent

the IRS from undertaking what would otherwise be

a valid exercise of its levy authority under 26 U.S.C.

§ 6331, because ERISA itself has a saving clause

that states: “Nothing in this subchapter [which

includes the anti-alienation provision] shall be construed to alter, amend, modify, invalidate, impair, or

supersede any law of the United States.” 29 U.S.C.

§ 1144(a). 

Id. at 660. We concluded that “it is plain that the IRS’s

authority to proceed against a delinquent taxpayer’s interest in

benefits from an ERISA-governed plan is not constrained by

ERISA’s anti-alienation provision.”

5

Id. The issue, thus, is

ments received by a person whose name has been entered on the

Army, Navy, Air Force, and Coast Guard Medal of Honor roll

(38 U.S.C. 1562), and annuities based on retired or retainer pay

under chapter 73 of title 10 of the United States Code. 

(7) Workmen’s compensation. Any amount payable to an individual as workmen’s compensation (including any portion

thereof payable with respect to dependents) under a workmen’s

compensation law of the United States, any State, the District of

Columbia, or the Commonwealth of Puerto Rico. 

5We also noted that other courts had reached the same conclusion, citing

Shanbaum v. United States, 32 F.3d 180, 182-83 (5th Cir. 1994)

3182 UNITED STATES v. NOVAK
reduced to whether the government’s writ of garnishment to

enforce a criminal restitution order has the same reach as a

writ of garnishment to enforce a tax lien. We hold that it does.

Although a tax liability to the federal government is conceptually different from an order of restitution to a defrauded

party, Congress, in enacting the MVRA, made the social policy decision to treat the latter in the same manner as the former.6

As noted, the Supreme Court in Guidry recognized that

exemptions to ERISA’s anti-alienation provision concerned

broad social policies, which were properly within the province of Congress. Guidry, 493 U.S at 376-77. In enacting the

MVRA and providing for the enforcement of restitution

orders through 18 U.S.C. § 3613, Congress — as the Supreme

Court in Guidry indicated that it could — has created a statutory exception to ERISA’s anti-alienation provision. 

We note that our conclusion is in accord with lower court

decisions from around the country. E.g., United States v.

Lazorwitz, No. 5:04 CV 161 F, 2005 WL 3732741, at * 2

(E.D.N.C. Nov. 17, 2005) (holding that because the defendant’s “interest in an ERISA qualified plan does not fit within

(“[r]eading the unambiguous language of Internal Revenue Code section

6334(c) with the mandate contained in section 1144(d) of ERISA, Shanbaum’s argument that the IRS levy authority yields to the later enacted

non-alienation provision is without merit”); United States v. Sawaf, 74

F.3d 119, 123-24 (6th Cir. 1996) (upholding the treasury regulation that

authorizes the IRS to levy on the benefits of an ERISA-governed plan and

applying that regulation to uphold the IRS’s collection against such benefits); and Anderson v. United States, 149 B.R. 591, 595 (9th Cir. BAP

1992) (upholding a tax lien against benefits from an ERISA-governed

plan). 

6The broad social policies may be seen in the language in Senate Report

104-179 which notes that the legislation was needed “to ensure that the

loss to crime victims is recognized, and that they receive the restitution

that they are due,” and so that “the offender realizes the damage caused

by the offense and pays the debt owed to the victim as well as to society.”

S. REP. NO. 104-179, at 12 (1995), as reprinted in 1996 U.S.C.C.A.N. 924,

925. 

UNITED STATES v. NOVAK 3183
any exceptions listed in § 3613(a), ERISA is not a bar to garnishment”); United States v. James, 312 F. Supp. 2d 802, 805

(E.D. Va. 2004) (“Because defendant’s interest in an ERISA

qualified plan does not fit within any of the exceptions listed

in § 3613(a), it follows that ERISA is no bar to garnishment

of a qualified pension plan to collect a criminal restitution

order.”); United States v. Tyson, 242 F. Supp. 2d 469, 474

(E.D. Mich. 2003) (“[T]his Court holds that 18 U.S.C. § 3613

is an express statutory exception to the anti-alienation provision of ERISA[.]”); United States v. Sowada, No. 03-240,

2003, WL 22902613, at *2 (E.D. La. Dec. 9, 2003) (holding

that “the United States can garnish ERISA funds for satisfaction of criminal fines and penalties,” and observing that to

“hold otherwise would give convicted criminal defendants

greater rights than those of citizens who owe a tax debt to the

government.”); United States v. Rice, 196 F. Supp. 2d 1196,

1202 (N.D. Okla. 2002) (“With the passage of 18 U.S.C.

§ 3613, Congress created an exception to ERISA’s antialienation provision by subjecting all of a criminal defendant’s property to execution for the collection of a criminal

fine.”).

III

Finally, our decision is not inconsistent with our opinion in

Jackson. There, the district court, without reference to any

statute, had ordered Jackson to use benefits from his ERISA

pension plan to pay a criminal restitution order. 229 F.3d at

1224. On appeal, Jackson for the first time raised ERISA’s

anti-alienation provision as a defense. Id. at 1225. We found

that there was no equitable exception to the anti-alienation

provision, and accordingly held that it was plain error to order

Jackson to draw out his ERISA plan benefits. Id. 

Our determination in Jackson that there was no applicable

equitable exception to ERISA’s anti-alienation provision was

an accurate reading of Guidry, insofar as equitable principles

apply generally to common law or statutory spendthrift trusts

3184 UNITED STATES v. NOVAK
and their equivalents. There, however, neither party called the

district court’s, or this court’s, attention to the specific provisions of the MVRA which apply to this case. Congress, in

enacting the MVRA post-Guidry, and in providing for the

enforcement of restitution orders pursuant to 18 U.S.C.

§ 3613, created a statutory exception to ERISA’s antialienation provision. Accordingly, although Jackson is part of

the background against which we review the intersection of

the MVRA and ERISA, that case does not require us to ignore

the clearly expressed Congressional choice to give the MVRA

the same standing the IRS has when it gathers up assets to satisfy internal revenue demands. 

IV

[6] The Supreme Court in Guidry noted that an antialienation provision was based on “the view that the effectuation of certain broad social polices sometimes takes precedence over the desire to do equity between particular parties.”

Guidry, 493 U.S. at 376. It also recognized that it was appropriate for Congress to create exceptions to an anti-alienation

provision. Id. We determine that Congress, by requiring the

entry of restitution orders in certain criminal cases (18 U.S.C.

§ 3663A(a)(1)), by making those restitution orders liens in

favor of the United States (18 U.S.C. § 3613(c)), and by

authorizing the enforcement of those orders against all properties not exempt from the reach of the United States for the

payment of taxes (see 19 U.S.C. § 3613(a)), has created a statutory exemption to ERISA’s anti-alienation provision.

Accordingly, the district court’s order quashing the writ of

garnishment is VACATED and this matter is REMANDED.

B. FLETCHER, Circuit Judge, dissenting: 

I respectfully dissent. 

UNITED STATES v. NOVAK 3185
The majority holds that the Mandatory Victim Restitution

Act (MVRA), 18 U.S.C. § 3663A, in conjunction with 18

U.S.C. § 3613, constitutes a statutory exception to ERISA’s

anti-alienation provision. However, Guidry v. Sheet Metal

Workers National Pension Fund, 493 U.S. 365 (1990), as well

as our decision in United States v. Jackson, 229 F.3d 1223

(9th Cir. 2000), require Congress to issue a clear statement of

its intent to abrogate ERISA. Neither the MVRA nor 18

U.S.C. § 3613 contains such directive. 

Section 206(d) of ERISA provides that benefits under its

pension plans “may not be assigned or alienated.” See 29

U.S.C. § 1056(d)(1). Guidry takes an uncompromising

approach, finding no exceptions to ERISA’s anti-alienation

provision without a clear directive from Congress. “If exceptions to this policy are to be made, it is for Congress to undertake that task.” Guidry, 493 U.S. at 346. Congress — not

courts — determine the exceptions to the statutory bar.1

In Jackson, we reversed a district court decision that

ordered a defendant to pay immediate restitution out of the

proceeds of his undistributed ERISA pension plan. We followed Guidry’s unequivocal rejection of any generalized

equitable exception to ERISA’s anti-alienation provision,

holding that no exception to ERISA’s anti-alienation provision shall lie unless Congress says so. 

The few exceptions to this rule are clearly indicated within

the statutory text. For instance, § 104(a) of the Retirement

Equity Act of 1984, see 29 U.S.C. § 1056(d)(3), clearly mandates that the anti-alienation provision does not apply to a

1The Guidry decision honors Congress’ “considered . . . policy choice

. . . to safeguard a stream of income for pensioners . . . even if that decision prevents others from securing relief for the wrongs done them.” Id.

at 376. And it notes that those social-policy objectives “sometimes take[ ]

precedence over the desire to do equity between particular parties.” Id. at

376. 

3186 UNITED STATES v. NOVAK
qualified domestic relations order. See Guidry, 493 U.S. at

376 & n.18. ERISA contains an explicit, narrow exception to

the anti alienation provision in cases of crimes against the

pension plan itself. See 29 U.S.C. § 1056(d)(4)(A)(1) (noting

that the anti-alienation provision in § 1056(d)(1) “shall not

apply . . . if . . . the order or requirement to pay arises . . .

under a judgment of conviction for a crime involving such

plan . . . .”); see also Jackson, 229 F.3d at 1225. 

The majority holds that statutory amendments enacted after

Guidry but prior to Jackson constitute an exception to the

Guidry principle. First, the MVRA requires district courts to

order restitution for victims in cases involving loss of property. 18 U.S.C. § 3663A(a)(1). Second, under 18 U.S.C.

§ 3613(a), the “United States may enforce a judgment imposing a fine in accordance with the practices and procedures for

the enforcement of a civil judgment under Federal law or

State law.” The provision takes effect “[n]otwithstanding any

other Federal law,” id., and “all provisions of this section are

available to the United States for the enforcement of an order

of restitution.” Id. at § (f). 

This statutory scheme does not evidence a clear statement

to abrogate ERISA’s anti-alienation provision.2 Although the

statutory text does mandate restitution, it lacks any express

statement (as it does for Social Security, see 18 U.S.C.

§ 3613(a)) that restitution owed to victims can be collected

from ERISA pensions.3 And, as noted previously, there is

nothing within ERISA calling for an exception for orders of

2Neither does the legislative history of the MVRA support the majority’s analysis. Although Congress recognized the importance of compensating victims for their losses, the history contains no mention of ERISA

or a desire to undermine the anti-alienation provision or the Supreme

Court’s holding in Guidry. 

3The majority notes that § 3613 contains no exception for ERISA pension plans. However, the provision does not explicitly include it, either (as

in the case of Social Security). It falls short of Guidry’s requirement of an

explicit statement abrogating the anti-alienation provision. 

UNITED STATES v. NOVAK 3187
restitution. Without an express directive in the restitution statute to seize ERISA pensions or a specific carve-out within

ERISA’s anti-alienation provision, we should not create one

through judicial fiat. 

The MVRA determines a certain kind of penalty the government can enforce, but it does not resolve “the narrow question whether that judgment may be collected through a

particular means — a [restitution order] placed on the pension.” Guidry, 493 U.S. at 376 (emphasis added). To create

such an exception without clear intent is “especially problematic in the context of an antigarnishment provision. Such a

provision acts, by definition, to hinder the collection of a lawful debt.” Id. 

As the Supreme Court noted in Guidry, “[i]t is an elementary tenet of statutory construction that ‘[w]here there is no

clear intention otherwise, a specific statute will not be controlled or nullified by a general one.’ ” Id. at 375 (citing Morton v. Mancari, 417 U.S. 535, 550-551 (1974)). Thus, unless

and until Congress amends either the ERISA statute to explicitly provide an exception for restitution orders or the restitution statute to explicitly permit the seizure of ERISA pension

assets, the general restitution statute cannot trump ERISA’s

more specific anti-alienation provision. 

The majority cites a handful of out-of-circuit precedents

supporting its conclusion that § 3613 constitutes an exception

to the anti-alienation provision. But interpretations of courts

in sister jurisdictions are not controlling, especially where, as

here, Jackson dictates the contrary outcome. See United States

v. Martinez, 967 F.2d 1343, 1347 (9th Cir. 1992) (“we are

obliged to follow the law of our circuit over inconsistent law

from other circuits”). Unless and until we review that decision

en banc, it remains good law, see United States v. RodriguezLara, 421 F.3d 932, 943 (9th Cir. 2005), and the majority is

obligated to apply it. 

3188 UNITED STATES v. NOVAK
Our opinion in Jackson, decided after codification of the

MVRA, cannot so easily be brushed aside. Jackson clearly

holds that undistributed ERISA funds cannot be used to make

restitution payments unless, as per ERISA, the underlying

crime involved the particular ERISA plan in question. 

The majority sidesteps Guidry’s requirement of a clear congressional statement to carve out exceptions to ERISA’s antialienation provision and sets up irreconcilable conflict with

Jackson. I cannot support such an outcome and therefore dissent from the majority’s holding.

UNITED STATES v. NOVAK 3189